Says
Plaintiff Demonstrated ‘Gall’ in Claiming He Was Damaged by Action Brought
Against Him That He Could Have Prevented by Revealing the Controversy Had
Become Moot

By a MetNews
Staff Writer

The Court of
Appeal has affirmed a judgment terminating a malicious prosecution action
against the multi-state law firm of Dykema Gossett LLP and an attorney in its
Los Angeles office, Jon D. Cantor, accusing the plaintiff, Orange County lawyer
Kevin E. Monson of “gall” in contending he was a victim.

Writing
for the Fourth District’s Div. Three, Justice Raymond J. Ikola said in his
unpublished opinion on Monday that the malicious prosecution action necessarily
meets the first prong of the anti-SLAPP statute because filing a lawsuit is
protected activity. He went on to declare that Monson had failed to meet his
burden under the second prong: showing a probability of his action succeeding.

Monson’s
lawsuit harks to an earlier successful action filed by Cantor on behalf of its
client Angelus Block (which makes masonry products) against Joseph Parks. Parks
and his wife filed for bankruptcy, but the Bankruptcy Court found that
$63,870.87 of the judgment was nondischargeable based on the judgment debtor’s fraud.

Efforts
at collecting on the judgment were thwarted when Parks entered into a
post-nuptial agreement with his wife, Tiffany Parks, putting all of his assets
in her name.

Taunting Letter

Monson
said in a letter to Cantor:

“Joe
has no assets and will never have any money. Tiffany is beyond your reach
(because you have no judgment against her and because the post-nuptial
agreement of March 2013 makes all of her future income her separate property).
If I find any cash, rest assured that I will take it before anyone else will
know it exists.”

Cantor
then filed an action on behalf of Angelus Block in which Monson was named. The
complaint alleged fraud, based on Monson’s representation that his client was
bereft of funds, and conspiracy to make a fraudulent conveyance, based on
Monson having concocted the post-nuptial agreement.

A
judge dismissed the cause of action for fraud, holding the litigation privilege
pertained. Four months later, Monson revealed that the post-nuptial agreement
had been rescinded prior to the action for fraudulent conveyance being filed.

He
wrote to Cantor:

“The
post-nuptial agreement was rescinded after I received your correspondence that
cited authorities indicating that the post-nuptial agreement may be
unenforceable. You, of course, chose to file the lawsuit without ever seeing or
requesting to see the post-nuptial agreement and without any inquiry as to the
continued existence or effect of the agreement. I warned you multiple times
that your threatened lawsuit was without basis in law or fact.”

Angeles
Block dismissed its remaining cause of action, for fraudulent conveyance, and
Cantor brought his suit for malicious prosecution.

Enumerates
Elements

Ikola
said in Monday’s opinion that an action for malicious prosecution will lie only
if there is a termination of the prior action in favor of the defendants as to
all causes of action, that the action was brought without probable cause, and
with malice.

A
voluntary dismissal will sometimes satisfy the requirement of a favorable
termination—but this was not one of those times, he wrote, given that the
dismissal of the cause of action for fraudulent conveyance did not reflect on
the merits of the action. He explained:

“The
reason Angelus Block dismissed the prior lawsuit is plain. The lawsuit was
based on the postnuptial agreement, and Monson waited several months into the
litigation before revealing it had been rescinded. Does that reflect Monson’s
innocence? Clearly not. To the contrary, the fact that Monson orchestrated a
rescission in the first place indicates he knew he was likely guiltyof
conspiring to fraudulently convey the Parks’s assets. He then took steps to
mitigate any damage to Angelus Block, but he failed to reveal those mitigating
steps and, essentially, induced Angelus Block to file the fraudulent conveyance
action. He then had the gall to claim hewas damaged by the pendency of the
lawsuit when he was sitting on the key to ending it the entire time. If anyone
was damaged as a result of these events, it was Angelus Block, who maintained a
lawsuit that had largely been mooted by actions Monson failed to disclose.
Monson was not an innocent party, and thus Angelus Block’s dismissal of the
conspiracy claim does not constitute a termination in Monson’s favor.”

Ikola
went on to say that Cantor had probable cause to include a cause of action for
fraud. He said it was not necessary to determine whether the litigation
privilege did shield Monson from liability, but only “whether Angelus Block’s
claim was arguable,” adding: